Halachic History of Copyright
One of the curses recorded in this week’s parsha is against someone who moves the border. In halachic terms, hasagas gevul, moving borders also includes infringes on someone’s property rights.
Does a publisher have rights protecting him so that he has the opportunity to recoup his investment? Assuming that such rights exist, do they apply in all cases, or only if it is a new publication? For how long are his rights protected?
Does the Torah have a concept of intellectual property rights, meaning that someone who creates or invents an item is owner of his invention?
WHAT RIGHTS DOES THE PUBLISHER HAVE?
One of the earliest published responsa on this subject deals with a very interesting sixteenth century case. One of the gedolei Yisrael of the time, the Maharam of Padua, Italy, entered a partnership with a non-Jewish publisher in Venice to produce a new edition of Rambam. Maharam invested a huge amount of time checking and correcting the text for this edition, included notes of his own, and apparently also invested significant amounts of his own money in the undertaking. A competing publisher, also a non-Jew, produced an edition of Rambam (without Maharam’s corrections and notes) at a greatly reduced price, apparently out of spite that Maharam had engaged his competitor. It appears that the second publisher might have been selling the set of Rambam at a loss with the intent to ruin the Maharam financially. The halachic question was whether an individual may purchase the less expensive edition of the second publisher.
The shaylah was referred to the Rama for decision, who ruled that the second publisher’s actions constitute unfair trade practices. Rama prohibited purchasing or selling the competing edition, until the Maharam’s edition was sold out. Realizing that the non-Jewish publisher would not obey his ruling, Rama reinforced his ruling by placing a cherem (decree of excommunication) on anyone selling, buying or abetting the sale of the competing edition (Shu”t Rama #10). This was an effective way of guaranteeing that Jews did not purchase the less expensive (but inferior) edition.
The Rama’s ruling established a precedent. Subsequent to Rama’s ruling, it became common practice for publishers to include in their works a cherem (plural: charamim) from a well-known posek banning the publishing of the same sefer, usually for a period of six to twenty-five years. As a matter of fact, these charamim were the main reason why publishers sought haskamos when they published seforim. The purpose of the haskamah was that they included charamim, to make it financially worthwhile for the publisher to invest the resources necessary to produce the sefer. Thus, these charamim encouraged publishing more seforim and the spread of Torah learning.
Generally, these charamim protecting the publisher’s rights were accepted and obeyed. However, in the early nineteenth century, an interesting dispute arose between the Chasam Sofer, the Rav of Pressburg, and Rav Mordechai Benet, the Rav of Nikolsburg, germane to the production of the famous Roedelheim machzorim. Two competing editions of these machzorim were produced, the first by Wolf Heidenheim, who had invested much time and money gathering and comparing the texts in old editions and manuscripts. A Jewish publishing house located in a different city subsequently published a competing edition. Prior to Heidenheim’s issuing the machzorim, several prominent rabbonim had issued a cherem banning other publishers from competing.
The Chasam Sofer prohibited the second publisher from selling his machzorim and similarly banned people from purchasing them (Shu”t Chasam Sofer, Choshen Mishpat #41, #79). In his opinion, this case is halachically comparable to the edition of Rambam produced by the Maharam Padua.
Rav Benet disagreed, contending that there were several key differences between the cases. In his opinion, it is unnecessary to guarantee publication of machzorim by issuing charamim. Machzorim are a common item, and publishers know that they will profit from producing them. Thus, the entire purpose for which these charamim were created, to guarantee the production of seforim, does not apply. Furthermore, since non-Jewish publishers will certainly produce machzorim, issuing a cherem against competition will benefit the non-Jewish publishers, who will be faced with less competition, more than it will benefit a Jewish publisher, such as Wolf Heidenheim. In addition, Heidenheim’s first edition had already sold out, and charamim traditionally ended when the edition was sold out, assuming that one edition was sufficient to guarantee a publisher sufficient profit to make it worth his while. In addition, Rav Benet questioned whether the system of charamim was still appropriate, once the government had established its own rules and laws of copyright infringement (Shu”t Parashas Mordechai, Choshen Mishpat #7, 8).
The Chasam Sofer countered that since Heidenheim had invested time and money in checking and correcting texts, his business interest should be protected to a greater degree, and that Heidenheim should qualify under a special halachic dispensation allowed for those guaranteeing that Torah texts are accurate (see Kesubos 106a). As a result, the Chasam Sofer contended that Heidenheim’s monopoly should be allowed for the entire twenty-five years decreed in the original cherem, even after he had sold out his first edition.
DOES HALACHA RECOGNIZE INTELLECTUAL PROPERTY AS OWNERSHIP?
This shaylah came to the forefront in the middle of the nineteenth century, also as a result of a din torah. Around 1850, a printer named Yosef Hirsch Balaban published a large-size edition of Shulchan Aruch with major commentaries, accompanied for the first time by the anthologized commentary, Pischei Tshuvah. Balaban was sued in beis din by a printer named Avraham Yosef Madfis who claimed to have purchased exclusive rights to Pischei Tshuvah from its author. (I am uncertain whether “Madfis” was indeed his family name, or whether this referred to his profession.) At the time, Pischei Tshuvah had been printed only once, in a small-size edition, including only the Shulchan Aruch and one other commentary, the Be’er Heiteiv. Madfis claimed that Balaban had violated his (Madfis’s) exclusive ownership rights to Pischei Tshuvah.
The Rav who presided over the din torah, Rav Shmuel Valdberg of Zalkava, ruled in favor of Balaban for the following reason. The original edition of Pischei Tshuvah did not include any statement placing a cherem against someone printing a competing edition. Rav Valdberg contended that this voided any copyright on Pischei Tshuvah. Furthermore, Rav Valdberg included two more reasons to sustain his ruling. One, the original edition of Pischei Tshuvah was no longer available. Thus, even had a cherem banned a competing edition, it would have already expired once the first edition had sold out. Second, even if the first edition was still available for sale, Balaban’s reproducing Pischei Tshuvah as part of a multi-volume set of Shulchan Aruch was not competition for the original edition, where Pischei Tshuvah had been published as a small, presumably inexpensive sefer. Rav Valdberg reasoned that no one interested in purchasing Pischei Tshuvah would likely purchase Balaban’s edition of Shulchan Aruch just for that purpose; instead he would buy the small edition (assuming it was available). Thus, he did not consider Balaban’s edition to be unfair competition for those looking to purchase Pischei Tshuvah.
According to Rav Valdberg’s analysis, the author of Pischei Tshuvah has no greater ownership to his work than someone publishing a different person’s work. His latter two arguments, that the first edition was already sold out and therefore the cherem expired, and that the multi-volume set does not compete with the one volume edition, would both be preempted if we assume that the author retains ownership over his work. Thus, Rav Valdberg did not believe that halacha recognizes intellectual property rights.
The Sho’eil uMeishiv (1:44) took issue with this point. In a letter addressed to Rav Valdberg, which he subsequently published in his own responsa, he contended that the author of a work is its owner. Thus, Pischei Tshuvah retains his rights as author/owner whether or not a cherem was declared against competition. A cherem is to guarantee a publisher enough time to recoup his investment. An author is an owner, not an investor, and maintains ownership over the item produced, which he is entitled to sell, regulate, or contract. This is called intellectual property rights.
Upon reading the Sho’eil uMeishiv’s ruling, Rav Yitzchok Shmelkes, wrote him that he disagreed with Sho’eil uMeishiv’s reasoning (Shu”t Beis Yitzchok, Yoreh Deah 2:75). Beis Yitzchok contends that halacha does not recognize intellectual property rights as inherent ownership. In Beis Yitzchok’s opinion, the author has a right of ownership, but only because it is accepted by government regulation, which is termed dina dimalchusa dina, literally, the law of the government is binding. Although halacha does not usually accept non-Jewish legal regulations, a civil law established for the wellbeing of society is usually accepted. Since intellectual property rights encourage initiative and invention that are in society’s best interests, halacha accepts these ownership rights to the extent that they are recognized by civil law.
There are several key differences between the position of Sho’eil uMeishiv and that of Beis Yitzchok. According to Sho’eil uMeishiv, the ownership of an author exists forever, just as any other property that he owns. Upon his passing, they are inherited by his heirs, just like his other property. However, in Beis Yitzchok’s opinion, the ownership rights extend only according to what is established by government regulation and expire after a number of years. Moreover, in most countries, a copyright is valid only if registered, and it must also be indicated in the published work. Presumably this was not true in the Beis Yitzchok’s place and time, since he applied civil copyright law to Pischei Tshuvah, even though the author had not indicated any copyright in the sefer.
Thus, whether halacha recognizes intellectual property ownership is disputed.
Some authorities rally evidence that the Chofetz Chayim agreed with the Sho’eil uMeishiv’s position. The Chofetz Chayim left specific instructions detailing who owns the publishing rights to his seforim after his passing. He instructed that his seforim on loshon hora could be freely republished, and that Mishnah Berurah may be published by anyone, provided that 4% of its volumes printed are donated to shullen and batei medrash. However, he stipulated that most of his seforim could not be republished without permission of his family members, and that the proceeds from such publication should succor his widow for the rest of her life. Chofetz Chayim’s instructions imply that he considered his ownership to be in perpetuity. Furthermore, Chofetz Chayim did not publish any words of cherem or copyright inside his seforim. Thus, he seems to have presumed ownership over future editions of seforim on the basis of intellectual property (Shu”t Minchas Yitzchok 9:153), although it is possible that he based it on dina dimalchusa dina, following the opinion of Beis Yitzchok.
If one reads the haskamos on sefarim, published from the time of the Rama until the close of the nineteenth century, one notices that this dispute between the Sho’eil uMeishiv and the Beis Yitzchok seems to have been fairly widespread. For example, when the Chavos Yair published his own responsa, all the haskamos allow his copyright rights against someone else publishing his own responsa for a limited period of time. According to the Sho’eil uMeishiv’s opinion, the Chavos Yair should have owned these rights forever!
On the other hand, when a new edition of Shu”t Rivash was published in the 1870’s, it included a very extensive index that included all the places that the Rivash is quoted by the Beis Yosef and other halachic authorities. The edition contained three haskamos: from the Netziv, from Rav Yitzchak Elchanan Spector and from the Malbim. All three include a cherem against anyone publishing the Shu”t Rivash for six years, but explicitly mention that the ownership of the newly created index is the property of the publisher forever and may not be reproduced without his permission. They clearly are recognizing intellectual property rights in halacha.
Thus, we see interesting historical precedent both in favor of and in opposition to whether halacha recognizes intellectual property. Some of these factors are included when debating the role of copyright violation in halacha today.